Appeal No. EAT/422/90

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 27th January 1993

	Before

	THE HONOURABLE MR JUSTICE WOOD MC (P)

	(AS IN CHAMBERS)

DR ROYCE DARNELL	APPELLANT

TRENT REGIONAL HEALTH AUTHORITY	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	DR R DARNELL
(Appellant in Person)

For the Respondents	MR DOMINIC NOLAN
(Of Counsel)
Mr J D Evans
Regional Legal Adviser
Fulwood House
Old Fulwood Road
Sheffield
S10 3TH

	MR JUSTICE WOOD (PRESIDENT):  This is an interlocutory application by Dr Royce Darnell for disclosure of three documents.  He is a medical doctor and a consultant.  There has been a long history of problems, I use that as a loose expression, stretching from 1980 onwards and shortly there will be the hearing of an appeal to this Appeal Tribunal from a decision of an Industrial Tribunal which sat during January 1990 and which dismissed his allegation that he had been unfairly dismissed by the Trent Regional Health Authority.

	The history is complicated, it is detailed, there have been a number of enquiries and they include one by Judge Kenny stretching over some thirty two days.  Two applications for judicial review, the first one succeeded the second one failed.  The decision of the Industrial Tribunal will have to be examined at the full appeal.  Today, sitting alone, I am dealing only with an application for these three documents.

	It is to be noted that right from the very earliest days of the problems Dr Darnell has been represented either by Counsel, instructed by Le Brasseurs, who as we all know are Solicitors extremely experienced in connection with the medical profession or by professional officers of the BMA.  Indeed, a substantial number of documents were sought by way of discovery before the hearing before the Industrial Tribunal, therefore, one must bear in mind that over the years, both in proceedings in this Country and in proceedings before the Court of Human Rights, there have been opportunities for requests for discovery and examination in the greatest detail of all that occurred.  Dr Darnell, naturally, and rightly, feels very strongly that he has not been fairly dealt with and therefore, one wants to be sure that in so far as the matters are relevant he should know what occurred and what went on.

	The three documents of which he seeks disclosure must be considered individually.  The first one is a report prepared by the Regional Medical Officer, Professor Scott and that refers to the period of time in 1981 and 1982 before Dr Darnell was told that there were going to be disciplinary proceedings and that he should be suspended meanwhile.  He was so suspended and the investigation that took place was the investigation by Judge Kenny over those thirty-two days.  Prior to the decision to suspend the relevant Committee of the Authority needed to be advised about the matter.  The investigation was carried out and statements obtained by the Solicitor acting for the Authority.  He then, with Professor Scott, prepared a report and gave legal advice thereon to the relevant Committee.  That is apparent from what has been told to me by Mr Nolan, who represents the Authority.  Prima facie therefore, that document is the subject of professional privilege and Dr Darnell tells me that he has tried to obtain discovery of that document before and has failed to do so.  There is no appeal from those decisions but one looks for a reason and it seems to me that it may very well have been that, on the information which I have received today, the view was taken that that document was privileged.  Thus, on that ground alone I would, in the exercise of my discretion, refuse discovery.  However, there is a further basis for that decision and that is that it does not seem to me that it is relevant to the decision of the Industrial Tribunal, nor on the face of the Notice of Appeal, does it seems to be material to a hearing before this Appeal Tribunal.  Moreover, it would be fresh evidence and it would have to comply with the rules as to the admissibility of fresh evidence.  In the light of the initial or the earlier refusals of disclosure of that document it seems to me that it was, anyhow known of, by those advising Dr Darnell and was discoverable, if properly discoverable, at earlier stages.  The further point is taken by Mr Nolan on a letter from Le Brasseurs of the 24th August 1991, but I do not feel it necessary to comment on that.  It follows therefore that this document, which relates right back to 1981 and 1982 is, in my judgment, not relevant at this stage and is not disclosable also on the basis of privilege.

	The second document is said to be a report from Dr Sewell, and I am looking at a letter from Le Brasseurs of the 7th October 1992.  That came into being after the hearing before Judge Kenny and after Judge Kenny had reported, when the matter was being considered by a sub-committee in the light of that report, and in the light of any representations which Dr Darnell or his advisers wish to make.  The report and the deliberation of the sub-committee are to be found on pages 151 and 155 of the main bundle, of nearly 300 documents, prepared for the full appeal.  That report therefore, has already been disclosed and is in front of us.  Dr Darnell takes the point that Dr Sewell may have written some notes during the consideration by the Authority and when Dr Sewell is said to have also provided some verbal report of the proceedings.  Those scribbled notes, it seems to me, are not such as to be relevant because the report is there, the decision is there, there can be nothing improper in Dr Sewell having made one or two notes, as anyone does during a committee hearing and whether they exist or not, I know not but it seems to me that in May 1984 that the decision is based upon the documents already disclosed, and the fact that discussion took place and one or two scribbled notes may have been made, is not in my judgment, relevant.  Nor is it reasonable after all this length of time to seek discovery, and indeed, it will not be relevant, as I see the situation to the appeal before this Appeal Tribunal.  I would, therefore, refuse the second document.

	The third document is a report prepared by a Dr Oliver, said to be dated the 1st February 1988, recommending the dismissal of Dr Darnell.  That document came into being after the first of the two applications for judicial review.  The first application for judicial review came about because it was alleged that the Secretary of State after considering the result of what is called "a paragraph 190 appeal" which occurred after the initial decision of the Authority to dismiss, and in which Dr Darnell was successful, the Secretary of State looking at the recommendation of the 190 Committee had not consulted Dr Darnell but had only consulted the Health Authority.  So Sir Stephen Brown and Mr Justice McCowan, as he then was, upheld Dr Darnell's complaint and told the Secretary of State that he should start again and that he should consult, with both sides before reaching a decision on whether or not to accept the recommendation of the paragraph 190 Appeal Committee to try to find a further posting for Dr Darnell, or, whether, in fact, the correct decision was to confirm the termination of his employment.  The report of Dr Oliver therefore, assuming it exists because I have not seen it, would have come about during that period when the Secretary of State was considering representations from both sides.  It might, in those circumstances, have been the subject of any further complaint.  There was a further application for judicial review in December 1988, at which application could have been made for the disclosure of that report, I know not, the documentation in this whole history must now be quite vast and is not all before me.  However, what is abundantly clear is that the Trent Regional Health Authority, do not have that document, it is not in their possession, one would not expect it to be in their possession and as the Secretary of State is not a party there is no way in which an Order can be made against the Health Authority for the production of that report.

	It follows therefore, that each of these applications for discovery of individual documents, for those reasons must be refused and it is.